Los ingresos y gastos generales

Rebecca J. Cook available, so staff placed her in the emergency room

hallway. Her medical records were unavailable, so the treating physician was given a brief oral account of her symptoms. She died the following day. The offi- cial cause of death was digestive hemorrhage (inter- nal bleeding), which physicians explained as resulting from delivery of the stillborn fetus.

Regarding these facts, the Committee found that

• Alyne’s death was “linked to obstetric compli- cations related to pregnancy” and “must be regarded as maternal”66 _and

• Alyne had not been “ensured appropriate ser- vices in connection with her pregnancy.”67

The finding that Alyne suffered a maternal death is significant, because the State had argued that her death was “non-maternal and that the probable cause of death was digestive haemorrhage.”68 _{The Commit-}

tee’s finding is also important, because in Brazil the misclassification of the causes of women’s deaths leads to the underreporting of maternal deaths, often in sig- nificant numbers.69

The finding that Alyne had not been ensured appro- priate services in connection with her pregnancy was not contested by Brazil. The Committee found that the inappropriateness of services was due to their poor quality and the delays in diagnosing and treat- ing Alyne’s condition. There was a failure to perform blood and urine tests in a timely fashion, contributing to the delay in extracting the dead fetus, and a 14-hour delay in performing the curettage surgery necessary to remove the placenta, “which had not been fully expelled during the process of delivery and could have caused the haemorrhaging and ultimately the death.”70

The curettage surgery was done in Casa de Saúde, an inadequately equipped private health care center, which was providing public health services under a special agreement with the municipality.71

The Committee determined that the services were inappropriate in that there was an eight-hour delay in transferring Alyne to the public municipal hospi- tal because the hospital refused to “provide its only ambulance to transport her, and her family was not able to secure a private ambulance.”72 _{The transfer was}

ineffective because the health center, despite the time available to it for making proper arrangements, failed to transfer her medical records with her. Moreover, when she arrived at the hospital, there was a failure to treat her since “she was left largely unattended in a makeshift area of the hallway of the hospital for 21 hours until she died.”73

On February 11, 2003, three months following Alyne’s death, the family filed a civil claim for mate-

rial and moral damages which had not been resolved at the time of the Alyne decision in 2011.74 _{Twice, the}

family filed measures called tutela antecipada to pre- vent irreparable or serious harm pending a decision on the civil claim, but these measures were either ignored or denied.75 _{The Committee concluded that}

“the eight-year delay that has elapsed since the claim was filed…constitutes an unreasonably prolonged delay,”76 _{and therefore constitutes a violation of Article}

2(c) to establish effective protection of women’s rights through national tribunals.77

As a matter of law, the Committee found Brazil directly responsible for:

• the failure to monitor private institutions when medical services were outsourced to such institutions;78

• the failure to meet Alyne’s “specific, distinctive health needs” during her pregnancy;79

• the failure to address “her status as a woman of African descent and her socio-economic back- ground;”80 _and

• the failure “to comply with its obligations to ensure effective judicial action and protection.”81

In line with the obligation under Article 2(e) of the Convention to eliminate discrimination by any orga- nization or enterprise, the Committee explained that the State has an obligation “to take measures to ensure that the activities of private actors in regard to health policies and practices are appropriate.”82 _{The Commit-}

tee noted that “the State is directly responsible for the action of private institutions when it outsources its medical services,” and is therefore obligated “to reg- ulate and monitor private health care institutions.”83

The State’s responsibility with regard to both public and private health institutions is strongly anchored in the Brazilian Constitution, which affirms the right to health as a general human right.84

The Committee found the State did not comply with its obligation under Article 12(2) of the Convention to “ensure to women appropriate services in connec- tion with pregnancy, confinement and the post-natal period…” because of its failure to meet Alyne’s “spe- cific, distinctive health needs and interests” during pregnancy.85 _{The Committee also found that Brazil}

had not taken “all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on the basis of equality of men and women, access to health care services….” Accord- ing to Article 12(1), the Committee determined that the lack of appropriate maternal health services had a “differential impact on her right to life.”86

SYMPOSIUM

Acknowledging the concession by the State of dif- ferential qualities of services, the Committee recog- nized that Alyne’s marginal social status placed her in a vulnerable sector of society regarding access to emergency health services. As a result, the Committee concluded that Alyne “was discriminated against, not only on the basis of her sex, but also on the basis of her status as a woman of African descent and her socio- economic background.”87

Based on its findings of fact and determination of law, the Committee made recommendations specific to Alyne’s family, and, consistently with its practice of examining the structural causes of violations, issued recommendations aimed at health system failures that led to Alyne’s preventable death. With regard to the individual remedies, the Committee recognized the moral damage caused to Alyne’s mother, and the moral and material damage suffered by her daughter, referred to by her initials A.S.P. who was aged 5 at the time of her mother’s death, abandoned by her father and living with her grandmother in precarious con- ditions.88 _{The Committee required Brazil to provide}

appropriate reparation, including adequate financial compensation, to Alyne’s mother and daughter “com- mensurate with the gravity of the violations.”89

With regard to the systemic causes of the viola- tion, the Committee issued the following general rec- ommendations, requiring Brazil, in the Committee’s words, to:

• “Ensure women’s right to safe motherhood and affordable access for all women to adequate emergency obstetric care, in line with [the] gen- eral recommendation…on women and health”;

• “Reduce preventable maternal deaths through the implementation of the National Pact for the Reduction of Maternal Mortality at the state and municipal levels, including by establish- ing maternal mortality monitoring committees where they still do not exist, in line with the recommendations in its [previous] conclud- ing observations” on Brazil’s report to the Committee;90

• “Provide adequate professional training for health workers, especially on women’s repro- ductive health rights, including quality medical treatment during pregnancy and delivery, as well as timely emergency obstetric care”;

• “Ensure that private health care facilities comply with relevant national and international stan- dards on reproductive health care”;

• “Ensure that adequate sanctions are imposed on health professionals who violate women’s repro-

• “Ensure access to effective remedies in cases where women’s reproductive health rights have been violated and provide training for the judi- ciary and for law enforcement personnel.”91

Brazil is required to publish the Committee’s deci- sion in Portuguese and other recognized regional lan- guages, and to distribute it widely. The government is also required to “give due consideration to the views of the Committee, together with its recommendations, and…submit to the Committee, within six months, a written [confidential] response, including any infor- mation on any action taken in light of the views and recommendations of the Committee.”92

III. Exploring the Effectiveness of the Alyne Decision

Determining the effectiveness of any judgment is challenging.93 _{It requires articulating why intangible}

contributions, such as the decision’s normative devel- opment of the meaning of women’s equality rights in the context of health care, are significant. It has been insightfully explained that “assessments are related to complex normative and empirical assumptions; equity in health involves more than income; true eval- uations of contributions to justice in health require assessments of judicial interventions regarding social determinants; how the right to health is construed, together with the authority of physicians to make fact- related judgments upon which rights are enforced, affects possibilities for justice in health; and finally, assessing what counts as impact is inextricably related to conceptions of judicial power.”94

This section starts with an exploration of the sig- nificance of the Alyne decision for the development of women’s equality in accessing health care, then assesses possible approaches to determining Brazil’s compliance with the decision, and finally explores whether the Committee’s identification of standards of health equality can direct adjudication and policy domestically to achieve reproductive justice.95

A. The Decision’s Normative Effects

The legal articulation of how human rights apply to a pregnant woman is a monumental advance. It is the first time that a human rights committee identi- fied and analyzed the discriminatory gaps in a coun- try’s health care system from the perspective of a poor, pregnant, minority woman. The Committee estab- lished that the government is legally accountable for filling those gaps, and has an immediate obligation to take measures to do so. The effectiveness of the Alyne

Rebecca J. Cook decision has led to: (1) an understanding of prevent-

able maternal mortality as a matter of women’s human rights; (2) the accommodation of the sex-specificity of health care; (3) the elimination of intersectional dis- crimination in accessing maternal health services; and (4) the articulation of collective obligations to ensure women’s equal rights in the field of health care.

(1) The Committee’s finding of human rights viola- tions has led to a shift in understanding of maternal deaths as a matter of social injustice that societies are obligated to remedy.96 _{This shift is significant because}

maternal deaths can no longer be explained away by fate, by divine purpose or as something that is pre- determined to happen and beyond human control. Maternal deaths are preventable, and when govern- ments fail to take the appropriate preventive mea- sures, that failure violates women’s human rights. In acknowledging Alyne as a rights holder, the Commit- tee recognized that pregnant women and their health are worthy of consideration for their own sake, echo- ing the call to focus on maternal needs in maternal and child health programs.97 _{In so ruling, the Com-}

mittee laid the necessary normative foundation for the legal application of human rights to improve access to maternity care, and to the eventual further reduction in maternal mortality.

(2) The legal articulation of Alyne’s avoidable mater- nal death as a form of “discrimination against women in the field of health care” adds an important dimen- sion to the emerging international jurisprudence of rights relating to health. In holding that the failure to provide essential health care that only women need is a form of discrimination against women that govern- ments are obligated to remedy, the Committee legiti- mized the claims of pregnant women. It acknowl- edged them as rights holders with legitimate claims to emergency obstetric care (EmOC) that need to be addressed. Significantly, the Committee went beyond a finding of a violation of Article 12(2) to ensure obstet- ric care, meaning “appropriate services in connec- tion with pregnancy, confinement and the post-natal period.” In so doing, the Committee acknowledged that women’s physiological capacity to bear children safely should be accommodated as a matter of their equality under Article 2(1).

The decision requires State recognition of the sex-specificity of services needed to avoid maternal death.98 _{The key analytical point is  the sex-speci-}

ficity of the care, that it is “health care needed only by women,” rather than that the care is just obstet- ric. The accommodation of women’s sex-specific needs in reproduction accords with Article 4(2) of the Convention, which explains that “special mea- sures…aimed at protecting maternity shall not be

considered discriminatory.” Pregnancy and repro- duction is a socially beneficial physiological process, not a disease, in which only women engage. Mater- nal care, for this reason, is unlike other health care. The sex-specific  social role that women perform through reproduction underscores that states’ failure to accommodate sex-specific health care is a form of discrimination against women that they are obli- gated to remedy. That is, remedial action to accom- modate women’s sex-specific needs does not consti- tute discrimination against men.

(3) The effectiveness of the Alyne decision also lies in its ability to identify and address the causes of why these avoidable deaths are not avoided in the Afro- Brazilian subgroup of pregnant women.99 _{The Com-}

mittee relied on its General Recommendation on General Obligations of States in explaining that dis- crimination based on Alyne’s sex and gender is “inex- tricably linked”100 _{to other factors, such as her preg-}

nant status, her general health status, her status as an Afro-Brazilian, and her socio-economic status.101 _It

has been explained that:

Intersectional discrimination refers to multiple grounds or factors interacting to create a unique

or distinct risk or burden of discrimination. Intersectionality is associated with two features. First, the grounds or factors are analytically inseparable such that the experience of discrimi- nation cannot be disaggregated into distinct grounds. The experience is transformed by the interaction. Second, intersectionality is associ- ated with a qualitatively different experience, ‘creat[ing] consequences for those affected in ways which are different from consequences suf- fered by those who are subject to one form of dis- crimination only.’ Intersectional discrimination is captured in the jurisprudence by phrases such as, ‘unique and specific impact,’ or affecting in ‘a particular or different way.’102

Alyne’s experience of discrimination on multiple grounds was “analytically inseparable,” and had a “unique and specific impact” that was not common to pregnant, white, middle class Brazilian women or white, middle class Brazilian men.103 _{Her explanations}

of her symptoms did not make her a compelling “can- didate” for urgent blood and urine tests, and were not recognized by health care professionals as sufficiently serious for her to be a “candidate” for immediate trans- fer to EmOC.104 _{The unique and specific discrimination}

she suffered led to the obstacles that she encountered in accessing EmOC. The obstacles reflected her preg- nant status (e.g., limited availability of quality emer-

SYMPOSIUM

gency obstetric care), her race (e.g., systemic bias in attending to the health needs of racialized subgroups of women), and her poverty (e.g., inability to pay pri- vately for an ambulance). Intersectional discrimina-

tion resulted in restrictions on her access to services to a greater degree than would be encountered by a socially mainstream pregnant woman.

The significance of the finding of intersectional discrimination becomes even more apparent when it is seen in the context of work on health inequity or sometimes called health inequality.105 _Health

inequity refers to “health disparities between social groups categorized by some important feature of their underlying social position, social health dispari- ties in short.”106 _{The fact that pregnant Afro-Brazilian}

women are seven times more likely than white women to die in pregnancy and childbirth categorizes them by their race. The health disparity between preg- nant Afro-Brazilian women and women generally provides the objective evidence of injustice. In other words, “health inequity refers to the health disparities that are unjust because they are avoidable and thus unnecessary.”107

(4) The Committee’s focus was on an individual victim, but it never lost sight of the multiple ways in which the health system failed her. A striking dimen- sion of the decision is the repeated shift of focus from the individual victim to vulnerable populations, from individual perpetrators of human rights violations to institutional and systemic factors that contributed to health inequities leading to Alyne’s death. The Com- mittee directed its decision beyond individual repa- rations, to recommend measures that would prevent repetition of avoidable maternal deaths, injuries and injustices. Accordingly, through its review of the events leading to one maternal death, the Committee underscored the importance of women’s equal rights in the field of health care to ensure maternal health services for all women in Brazil.

The Committee was well aware of the need to address the collective dimensions of Article 12 because

a function not only of individual circumstances, but also the collective nature of health care systems.”108 

The effectiveness of this decision will in part be deter- mined by whether it serves as a signal to the Brazilian

health system to address the collective obligation to eliminate all forms of discrimination against women in the field of health care by accommodating the sex- specific needs of women and to reduce the health inequalities associated with reproduction.

B. Brazil’s Compliance

Compliance is a key determinant of a decision’s effec- tiveness. Brazil has an opportunity to contribute to the effectiveness of the Alyne decision by prompt and appropriate implementation. Prompt and appropriate compliance enhances the legitimacy that the decision confers on the equal rights of pregnant women, and compliance legitimizes states that attend to the needs of pregnant women. (An example of an inappropri- ate measure to comply with the Alyne decision was Brazil’s attempt to institute a pregnancy registration requirement, causing an uproar due to its infringe- ments on women’s rights to privacy.109 _Fortunately,

this attempt failed.110₎

Through an innovative initiative of civil society, the coalition called Brazilian Platform on Economic, Social, Cultural and Environmental Rights (Dhesca Brasil) established a series of Rapporteurships,111

including one on the Human Right to Sexual and Reproductive Health.112 _{The Rapporteurs are inde-}

pendent experts appointed with a two-year mandate, often working in conjunction with the Procuradoria Federal dos Direitos do Cidadão (Federal Attorney General of Citizenship Rights) to investigate noncom- pliance with human rights or other related offenses. On the first anniversary of the Alyne decision, the Sex- ual and Reproductive Rights Rapporteur and many